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Submitted by Scott Cleland on Tue, 2016-06-21 17:08
The likelihood improved this week, that the Supreme Court could have an interest in hearing an appeal of the recent USTelecom v. FCC court decision that granted the FCC complete Chevron deference to uphold the FCC’s Title II reclassification of ISPs as utilities. That’s because a new unanimous 8-0 Supreme Court decision suggests that the USTelecom Court may have granted the FCC too much legal Chevron deference on its Title II reclassification. (A hat tip to Gus Hurwitz’ tweet for flagging the Title II relevance of this SCOTUS case and his great legal analysis is here.)
Submitted by Scott Cleland on Wed, 2016-06-15 17:47
The DC Circuit Court of Appeals’ 2-1 majority decision to completely uphold the FCC Open Internet Order on every single one of the ~couple dozen argued points, after the court had twice before not granted the FCC complete deference in overturning the FCC on these matters, surprised most everyone given the number and seriousness of the legal challenges put forth, and the selective skepticism the judges signaled at oral arguments.
Given that this total support of the FCC was not anticipated, what does this potentially seminal court precedent mean practically?
For now, the FCC effectively enjoys complete deference from this Court on Open Internet issues.
The majority dismissed every single one of the petitioners’ best legal, process, and constitutional challenges and proactively cauterized them with court assertions that the FCC’s actions were reasonable, supported by the evidence, and compliant with the APA, or that the challenges were unpersuasive.
Submitted by Scott Cleland on Tue, 2016-06-14 14:47
June 14, 2016, Contact: Scott Cleland 703-217-2407
Judge Williams Dissent in USTelecom v. FCC Lays Bare the Competition Problems With Both the Appeals Court Decision and the FCC’s Open Internet Order
WASHINGTON D.C. – The following may be attributed to Scott Cleland, Chairman of NetCompetition:
“There are big competition policy problems with the DC Court of Appeals 2-1 decision upholding the FCC’s 3-2 Open Internet Order that appear destined for the Supreme Court and Congress to ultimately resolve.”
“The court’s decision appears to effectively grant an FCC majority of three unelected commissioners with largely unfettered power to arbitrarily pick winners and losers in the competitive communications and Internet marketplaces without much administrative due process, explanation, justification, evidence or reasoned analysis.”
Submitted by Scott Cleland on Fri, 2016-05-27 10:03
Summary: It is rare for an FCC proceeding to be so wrong-headed and ill-conceived that it has seven huge flaws. Tellingly this one does.
Submitted by Scott Cleland on Fri, 2016-03-25 17:30
For the last several years that Netflix has relished the role of Grand Net Neutrality Inquisitor accusing ISPs of throttling Internet traffic in alleged violation of net neutrality, Netflix actually has been secretly throttling its Internet-leading traffic in ways that it never disclosed to either its users, the public, or to the FCC/FTC.
This incredible net neutrality revelation could have lots more repercussions than many appreciate at first glance.
We learned of this extraordinary duplicity from a WSJ story this week where Netflix was forced to fess up “that for more than five years it has limited its video speeds to most wireless carriers across the globe, including AT&T and Verizon… Netflix said it doesn’t limit its video quality at two carriers: T-Mobile and Sprint because “historically those two companies have had more consumer-friendly policies.”
Consider these under-appreciated repercussions.
Submitted by Scott Cleland on Thu, 2016-03-10 19:21
Less is not more. That’s real “common sense.”
While the FCC obviously complied with President Obama’s call for regulating broadband as a Title II utility, the FCC obviously ignored President Obama’s 2011 call for a 21st century regulatory system, where he said we are “making it our mission to root out regulations that conflict, that are not worth the cost, or are just plain dumb.”
When the FCC reclassified broadband to be a Title II telephone utility last year in its Open Internet Order, the FCC trumpeted one of the great net benefits would be increased consumer privacy protection.
Submitted by Scott Cleland on Tue, 2016-03-01 13:38
Looking backwards makes it hard to see what’s right in front of you.
Looking backwards at 1934-era Title II telephone utility law, the FCC concluded in its 2015 Open Internet Order that only broadband providers could be “gatekeepers” warranting net neutrality regulation to “protect and promote the “virtuous cycle” that drives innovation and investment on the Internet.”
That’s because the FCC is apparently oblivious to the very different 21st century communications “gatekeepers” right in front of them that command dramatically more potential “gatekeeper” market power than any broadband provider.
The FCC should listen to what one 21st century communications provider, which commands well over a billion social and communications users globally, has to say about the dominance of edge platforms.
Submitted by Scott Cleland on Mon, 2016-02-15 22:48
What’s a consumer to think about what the FCC’s responsibility is for their privacy protection?
Let me try to explain to a consumer what the Federal Communications Commission (FCC) arbitrarily has done, and apparently intends to do, for consumer internet privacy protection going forward.
By way of background, for the first decade of the Internet when consumers used dial-up technology, the FCC was responsible for protecting consumers’ private network information from commercial use without their permission.
For the second decade of the Internet when consumers came to use broadband technology, the FCC ceded its dial-up-Internet privacy protection authority to the Federal Trade Commission (FTC) which became responsible for consumer privacy protection from unfair and deceptive practices consistently across the entire American Internet ecosystem, regardless of who interacted with consumers’ private information.
Last spring, in order to assert legal authority to enforce net neutrality to protect edge providers from potential traffic discrimination in the FCC’s Open Internet Order, the FCC incidentally clawed back some privacy authority over Internet communications -- over the FTC’s strong objections.
Submitted by Scott Cleland on Thu, 2016-02-11 15:56
Submitted by Scott Cleland on Mon, 2016-02-08 22:45
Net neutrality absolutists are overreaching yet again in their push for a practical FCC ban of ISP zero rating offers under the FCC’s case-by-case “General Conduct Standard” review, by claiming violations of the “bright-line rules” in the FCC’s 2015 Open Internet Order against blocking, throttling and paid prioritization.
The problem here is that net neutrality absolutists, in exploiting the political pejorative power of the word ‘discrimination,’ have politically oversold their Title II net neutrality policy as “bright-line” ‘non-discrimination’ bans, implying no discrimination allowed, when Title II actually only bans “unjust and unreasonable discrimination.”
This is a distinction here with a huge difference; and it apparently is giving the net neutrality absolutists fits. They want to imagine that Title II prohibits their absolutist ‘no discrimination’ frame when it clearly does not.
They want to find a technical “gotcha” in every zero-rating or sponsored data offering, no matter how unreasonable their conclusion, so they can politically ask it be banned by the FCC under their concept of what a ‘no discrimination’ principle should be.